SARAH MOORHEAD Volume 10, Issue 3 Over the break, I interned at a native title representative body in Perth, working with lawyers who represented around 25 native title claimant groups in WA. And yep, the native title system is just as fucked up as I expected it to be. For anyone who hasn’t taken Property, the test basically requires the group of Aboriginal or Torres Strait Islander people seeking native title to prove that they have a connection to the land that pre-existed white invasion and has continued since then to this day; that they observed laws and customs before invasion, continue to practise those laws and customs, and that the rights and interests under those laws are recognised by Anglo-Australian law.
Putting aside the enormous evidentiary difficulties in meeting this test, given the destruction of records and forced removal of Indigenous peoples from their land, its colonialist, racist premise is inescapable: Indigenous* peoples’ laws and customs are inferior to those of Anglo-Australia, legally impotent without the beneficent ‘recognition’ of the Anglo-Australian system. Although I got to meet traditional owners who had been successful in their claims, and it was wonderful to hear them talk about the positive consequences for their communities, hearing them talk about the violence done by the process itself cemented my view of the system. On the 25th July, Four Corners released a program depicting abuse of Aboriginal children detained in the Don Dale juvenile detention centre. It was rightly described as awful and inexcusable. It was, as media sources including New Matilda have pointed out, less correctly described as ‘shocking’. The debate about the extent to which the Northern Territory government knew about this conduct will continue, and is set to be examined by a Royal Commission. From having (in another internship) worked on tort claims of false imprisonment of Aboriginal kids in juvenile detention, even I know that it’s ridiculous for the government to disclaim knowledge — but that’s not what I want to talk about here. In native title law, the burden of proof is on the Indigenous claimants. This is a simple legal proposition, but it has a significance I hadn’t really realised before: it means that they are, by default, disbelieved. Indigenous people have been reporting mistreatment at the hands of authorities for literally hundreds of years, including in recent decades when governments have purported not to be ok with racial abuse anymore. Nevertheless, it will take a Royal Commission — an institution of Anglo-Australian law proven ineffective in addressing Indigenous disadvantage at least once before — to render the reports legally consequential and legitimate. Indigenous voices are not believed by Anglo-Australian law. As countless Indigenous voices far more qualified than mine have stated, it is this default position of doubt that causes Anglo-Australian law (and society generally) to continue to marginalise Indigenous voices and erase Indigenous experiences. I’m very aware that in writing this, I’m taking a platform that I am privileged to access, and reiterating arguments that have been made by Indigenous people whilst simultaneously denouncing their voices being spoken over. However, I just don’t think that recognising the need to foreground Indigenous voices is to say that I, as a white Anglo-Australian law student, have no role to fulfil. That would be an incredible cop out. Instead, all non-Indigenous law students and future practitioners have to acknowledge the colonialist foundations of our legal system and critically examine the ways in which its prejudice against Indigenous people continues. We must question what it means to work in a system that expressly and systematically disempowers the peoples who pre-existed it in this country by millennia. This is a hard thing to do. It’s hard and it’s scary and it makes me want to collapse under what feels like a mountain of shame and grief and guilt. But, this is the legal system in which I and all other MLS students have chosen to work. And that means that its shit is our shit to sort out. Critique is only valid if its goal is progress. Revelations like the Don Dale abuse threaten to overwhelm with the enormity of what they say about our society. It is very, very hard to comprehend all the flaws and problems that lead to inequalities as enormous as that between Anglo- and Aboriginal Australia, and — at least for me — it’s even harder to know what to do about it as a white Australian law student. But I think that actually, that first step, the critique, is a source of hope: the more I come to understand about the development and nature of my legal system, the more I can start to think about what can be done to change it.† And the only way I’ll learn to identify the flaws in my law is to listen to Indigenous Australians. They know what has been and is being done to them, and they’ve been telling white Australia about it: it’s on us to start listening. So please, if you haven’t really thought about this before (and I hadn’t, really, until a couple of years ago) do an Aurora Project internship. Take Encounters or Law and Indigenous Peoples. Apply your legal knowledge to think about what a treaty would mean. Read New Matilda and NITV, follow Warriors of the Aboriginal Resistance, Stan Grant and Celeste Liddle. Read the views of Melbourne University’s Indigenous students in Under Bunjil. This will help you understand what you can do (at least, it’s helped me), but it will also raise the platform of Indigenous voices to the forefront of Australia’s consciousness — where they ought and need to be, if we are to counter the prejudice that disbelieves Indigenous Australians’ rights to their own land, that leads to incidents like Don Dale. *I’m using ‘Indigenous’ here to refer to both Aboriginal and Torres Strait Islander peoples. I do not intend this to erase the fact that the laws of Aboriginal and Torres Strait Islander peoples are unique and different to each other. † Mega thanks to Ann Genovese and Mark McMillan: the first Encounters lecture crystallised these feelings into words and sparked this article. Sarah Moorhead is a third year JD student. She is a committee member of both the Public Interest Law Network and Law Student for Refugees who have instituted “Pay the Rent” at their events, raising over $480 for the Rumbalara Football and Netball Club. Pay the Rent involves paying a voluntary contribution to an Aboriginal organisation or cause in recognition that, in lieu of a treaty with Aboriginal Nations, we meet and live on stolen land. If you are interested in doing Pay the Rent and want some advice, please contact PILN at [email protected].
Anonymous
9/8/2016 08:17:14 pm
Do your suggestions in this article apply to me if I am an Asian Australian?
Sarah Moorhead
9/8/2016 11:21:04 pm
Hi! Well, I think that they apply to anyone who's choosing to work and thus benefit from the Anglo-Australian legal system, because I think there's a responsibility that comes with profiting from such a flawed system. But on the other hand, it's a system that also disadvantages, or at least was not developed by, other non-white sectors of Australian society, so perhaps the obligation on those groups is less?
John
10/8/2016 12:53:10 am
Is your proposed alternative that indigenous voices regarding native title be automatically believed as a default position?
Duncan
10/8/2016 09:57:17 am
Well given it's Aboriginal land the burden of proof should be on the government or other non-Indigenous actors to prove that it's not Aboriginal land. Reverse the burden.
John
10/8/2016 11:59:04 am
I don't actually feel morally obliged to give deference to a system or people who previously held supremacy over any given area. To do so would lead to absurd and frankly stupid results. England becomes Roman land, Turkey becomes Greek land, Islam is pushed back into a strip of land along the Red Sea coast as the entirety of North Africa and the Middle East become Christian lands, and so on.
Duncan
11/8/2016 09:58:10 am
Your argument is bad even under Anglo-Australian law - Aboriginal people are recognised under Australian law as having supremacy over quite a lot of the Australian land mass - see Mabo lol.
Anon.
11/8/2016 10:19:57 am
"by any moral reckoning it's the only reasonable position to take"
Duncan
11/8/2016 10:29:51 am
I don't know why you think Colin Tatz is a radical academic.
John
11/8/2016 02:23:27 pm
I didn't say genocide was not commited, I said it was arguable that Australia did pursue a policy of a form of genocide, at least it is arguable that it did by interpreting the genocide convention.
Anonymous
10/8/2016 10:48:52 am
I think the premise we don't acknowledge the colonial nature of Anglo-Australian law and that such law is wrong because it displaced Indigenous Australians' law is deeply flawed. Any first year law student is taught the origins of our law. Yes, there are a number of prominent examples where it has failed Indigenous Australians. But at the same time it has made great strides towards inclusion of Indigenous Australians' law. Mabo is one such example.
Duncan
11/8/2016 10:23:31 am
Given that Aboriginal people in Australia are one of the most marginalised groups in the world - in fact, Aboriginal people are the most incarcerated race on earth - your suggestion that reducing the evidentiary burden on Indigenous Australians will lead to a marginalisation of the remainder of the community is laughable.
Anon
11/8/2016 11:11:42 am
You claim we aren't taught about the origins of our law, then cite exactly how we were taught.
Duncan
11/8/2016 11:45:34 am
You're right - I cited exactly how we are taught, and we were not taught about the origins of our law.
John
11/8/2016 02:12:58 pm
You must have missed the part in Mabo about skeletal principles. It was explicitly stated in Mabo that the fact that Australia was not Terra Nullius did not negate the arrival or continuing application of English law or address the question or sovereignty.
Jackie Chiles
10/8/2016 02:04:56 pm
A few issues with this article...
Henry HL
18/8/2016 03:43:56 pm
If this article doesn't contribute to anything, and so shouldn't have been written, what is your comment on this article contributing to? Substantially less than nothing, it seems. Shouldn't you have stayed silent by your own logic?
Anon.
11/8/2016 10:15:21 am
This article is an example of why we aren't seeing Indigenous Australians life outcomes improved at the rate they should be. Indigenous Australians have an unnecessary problem caused by white, middle-class activists' antagonism and detachment from reality.
Henry HL
18/8/2016 03:47:34 pm
You know, for someone extolling the virtues of 'rational, calm analysis', your comment is remarkably lacking in it.
Duncan
11/8/2016 12:11:38 pm
There's good "rational calm analysis" made by Aboriginal scholars about the problems caused to Indigenous Australians by white middle calss activists: http://www.kooriweb.org/foley/essays/essay_9.html.
Anon.
11/8/2016 03:38:17 pm
Great article. Helpfully brings up the issues with no legitimate attempt to solve any of them.
Henry HL
18/8/2016 03:55:46 pm
"So please, if you haven’t really thought about this before (and I hadn’t, really, until a couple of years ago) do an Aurora Project internship. Take Encounters or Law and Indigenous Peoples. Apply your legal knowledge to think about what a treaty would mean. Read New Matilda and NITV, follow Warriors of the Aboriginal Resistance, Stan Grant and Celeste Liddle. Read the views of Melbourne University’s Indigenous students in Under Bunjil. This will help you understand what you can do (at least, it’s helped me), but it will also raise the platform of Indigenous voices to the forefront of Australia’s consciousness — where they ought and need to be, if we are to counter the prejudice that disbelieves Indigenous Australians’ rights to their own land, that leads to incidents like Don Dale." Comments are closed.
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